Allahabad High Court
Jagdish Chandra & Others vs Krishna Mohan Aggrawal & Others on 6 February, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 6 Case :- SECOND APPEAL No. - 37 of 2020 Appellant :- Jagdish Chandra & Others Respondent :- Krishna Mohan Aggrawal & Others Counsel for Appellant :- Samarth Saxena Counsel for Respondent :- Ashish Chaturvedi Hon'ble Jaspreet Singh,J.
Heard Sri Samarth Saxena, learned counsel for the appellants and Sri N.K. Seth, learned Senior Advocate along with Sri Ashish Chaturvedi for respondent no. 8.
The instant second appeal has been preferred by the plaintiffs/appellants against a concurrent judgment and decree passed by the two courts whereby the application under Order 7 Rule 11 C.P.C. has been allowed rejecting the plaint of the appellants.
The learned counsel for the appellants has urged that the two courts while rejecting the plaint in suit upon applying the provisions of Order 7 Rule 11 C.P.C. has not considered the true import of Order 35 Rule 5 C.P.C. and has incorrectly applied the aforesaid provision in non-suiting the plaintiff which is a gross error of jurisdiction committed by the two courts, resulting in sheer miscarriage of justice.
The learned counsel for the appellants has submitted that an application under Order 7 Rule 11 is to be considered only on the basis of the averments contained in the plaint in suit. At the stage of such consideration, the Court cannot look into the written statement or the defence as raised by the defendants.
The learned counsel for the appellants has further submitted that it is one thing to state that the plaint does not disclose a cause of action and it is altogether different thing to urge that the plaintiff does not have a cause of action.
Elaborating his submission, it has been submitted that where on the meaningful reading of the plaint it does not disclose a cause of action, then the Court is then entitled to reject a plaint in terms of the Order 7 Rule 11 C.P.C., however, stating that the plaintiff does not have a cause of action, this necessarily would mandate the Court to consider the pleadings of the parties which necessarily involves looking into the written statement and only after the evidence is led can the Court reach such a conclusion that the plaintiff does not have a cause of action and this necessarily means that a plaint cannot be rejected as per Order 7 Rule 11 C.P.C. rather at best it would be a matter to be decided on merits.
It has been urged that the two courts have completely ignored the aforesaid distinction while rejecting the plaint and as such the appellant had suffered injustice.
It is also submitted that the two courts have not considered the provisions of Order 35 Rule 5 C.P.C. in the correct perspective and has rejected the plaint while all the ingredients required were clearly met and as such the plaint was very well maintainable which has erroneously been rejected.
In support of his submissions, the learned counsel for the appellant has relied upon a decision in the case of Yeshwant Bhikaji Vilankar Vs. Sadashiv Govind Arekar and Others reported in 1940 ILR 842 and State of Orrissa Vs. Klockner and Company and Others reported in 1996 (8) SCC 377.
Sri N.K. Seth, learned Senior Advocate assisted by Sri Ashish Chaturvedi, learned counsel for the respondent no. 8 has appeared on caveat and opposed the aforesaid submission.
It has been submitted that the interpleader suit as filed by the appellants was clearly hit by Order 35 Rule 5 C.P.C. as well as the proviso appended to Section 88 C.P.C. It has also been submitted that the appellants are the tenants of the property in question against whom the eviction suits are pending since 1998, hence in order to delay and to avoid the eventuality the alleged interpleader suit has been filed only in the year 2015, coupled with the fact that the alleged plaint suffers from gross concealment, inasmuch as, there is not a mention regarding the eviction suits filed by the landlords against the appellants. It has also been submitted by Sri N.K. Seth, that in paragraph 11 there is just a passing reference relating to the cause of action, that a suit was filed for eviction in the year 2015 which has given the cause of action to the plaintiff to file the aforesaid suit which as per Sri Seth is deliberate misrepresentation as the plaintiff concealed that the suits are pending since 1998. It has also been submitted that the proviso appended to Section 88 C.P.C as well as in light of the mandate contained in Order 35 Rule 5 C.P.C. the plaint has rightly been rejected.
Sri Seth has further submitted that under Order 7 Rule 11 C.P.C., it is a duty on the Court to consider whether any of the sub-clauses contained in the aforesaid provision are attracted. The power of Order 7 Rule 11 can be exercised at any stage, coupled with the fact that in the present case not only did the plaint did not disclose any cause of action but at the same time, it was barred by law. The distinction as sought to be highlighted by the learned counsel for the appellant regarding the plaint not disclosing the cause of action and that the plaintiff did not have a cause of action pales into insignificance in the present case since as per the plaint averments alone it was clearly established and admitted that the plaintiff who are the appellants herein are the tenants and the defendants are the landlords, therefore, the bar contained in Order 35 Rule 5 C.P.C. was clearly attracted and, thus, irrespective of the fact whether the plaint disclose a cause of action or not, the plaint was barred and thus the two courts have not committed any error nor any substantial question of law arises and the aforesaid second appeal is liable to be dismissed at the admission stage itself.
Sri Seth, learned counsel for the respondents has placed reliance upon a decision of the Apex Court in the case of T. Arivandam Vs. T.V. Satyapal and Another reported in 1977 (4) SCC 467 and Rajan Sharma Vs. Labh Singh reported in 2011 SCC Online P&H 5451.
The Court has considered the submissions of the learned counsel for the parties and also perused the record.
In order to appreciate the submissions of the learned counsel for the parties and to put the controversy in a perspective, certain facts giving rise to the above second appeal are being noticed hereinafter first:-
The plaintiffs (appellants herein) instituted a suit in the Court of Civil Judge, Senior Division, Lakhimpur Kheri bearing R.S. No. 290 of 2016 as an interpleader suit impleading the defendant-respondents who are the legal heirs of Late Sri Murlidhar.
It has been pleaded that the property the subject matter of which the plaintiffs-appellants are the tenants in possession was let out by late Sri Murlidhar. Upon the death of Sri Murlidhar it is alleged that he was survived by his daughter Smt. Anar Devi and a son late Sri Badri Prasad. It is also stated that Sri Murlidhar also executed a will by virtue of which he has constituted a Trust. Since both Smt. Anar Devi and Sri Badri Prasad expired and their legal heirs are the defendants.
It was further submitted that the defendants belonged to two separate branches i.e. to say, some were heirs of Smt. Anar Devi and others were the heirs of Late Sri Badri Prasad. None of the defendants have filed any suit amongst themselves to determine their right as the landlords, however, the defendants nos. 1 to 6 and 7, 8 and 10 have filed separate suits seeking eviction of the plaintiffs. It has been specifically stated in paragraph 11 that the cause of action accrued in the month of April, 2015 when the defendant nos. 1 to 6 instituted a suit for eviction while the defendants no. 8, 9 and 10 claimaning themselves to be the landlord have demanded rent from the plaintiffs and in the aforesiad backdrop it filed the interpleader suit on 17.08.2016 with the following reliefs:-
(i) The defendants be restrained from taking any action against the plaintiff in respect of the property in question;
(ii) That the defendants no. 1 to 6 and 7, 8 and 9 be required to interplead;
(iii) That till such time the matter is pending, the plaintiff be permitted to deposit the rent in Court or before any competent person to be appointed by the Court ;
(iv) That the costs of the suit be also awarded in favour of the plaintiff.
The defendants nos. 1 to 7 made an application under Order 7 Rule 11 C.P.C. stating therein that the plaintiff being the tenant does not have a right to institute the aforesaid interpleader suit in terms of Order 35 Rule 5 C.P.C. It was further indicated that it is incorrect of the plaintiff to state that the cause of action accrued in the Month of April, 2015 since eviction suits had already been filed against the plaintiffs in the year 1998 and the details of the aforesaid suits which were for eviction as well as release of the premises on account of bonafide need was already pending. It was also stated that the plaintiffs themselves had filed a writ petition before the High Court wherein the High Court had directed that the question regarding the ownership shall be decided, however, in order to delay the proceedings as well as to avoid the eventuality in the eviction suits the present interpleader suit has been filed and as such the plaint was liable to be rejected, apart from the fact that the suit was also barred by limitation.
It is in this backdrop that the Trial Court by means of its order dated 06.10.2017 allowed the application under Order 7 Rule 11 and rejected the plaint. While doing so the Trial Court relied upon Order 35 Rule 5 and found that since it is not disputed that the property in question was let out to the plaintiffs by Sri Murlidhar and they being the tenants, in light of the proviso, the tenant is precluded from filing an interpleader suit against the landlord, hence, it found that in the present case since the tenancy was governed by the U.P. Act 13 of 1972, hence as far as the relief claimed by the plaintiff was concerned regarding the deposit of rent he had a remedy before the appropriate court under the Rent Act and further in light of the embargo contained in Order 35 Rule 5 the plaintiff did not have a right to institute the suit and consequently the plaint was rejected.
The plaintiffs-appellants preferred a regular Civil Appeal before the District Judge, Lakhimpur Kheri which was registered as Regular Civil Appeal No. 79 of 2017. The lower appellate court after considering the material on record affirmed the judgment and decree passed by the Trial Court and dismissed the appeal. While doing so, it found that since Order 35 Rule 5 does not permit a tenant to file an interpleader suit against the landlord, hence, the plaintiff did not have a cause of action, coupled with the fact that the since the tenancy was governed by the U.P. Act 13 of 1972 wherein under Section 30 Sub Section 2, he had a remedy of depositing the rent, consequently, the findings of the Trial Court were affirmed and the appeal was dismissed by means of judgment and decree dated 09.01.2020.
It is these two judgments which have been assailed in the present second appeal. In light of the submissions made by the learned counsel for the respecive parties, this Court has to ascertain whether the judgment and decree passed by the two courts can sustain judicial scrutiny.
In order to test the submissions, it will be necessary to understand whether the alleged bar of Order 35 Rule 5 C.P.C. is applicable in the present case or not. At the very outset, it will be relevant to mention that interpleader has been provided in Section 88 of C.P.C. The aforesaid section reads as under:-
Section 88.- Where interpleader -suit may be instituted.- Where two or more persons claim adversely to one another the same debts, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.
This is the substantive Section under which the interpleader suits owe their origin. The same are regulated in tems of Order 35 C.P.C.
To interplead means to litigate with each other to settle a point concerning a third party. Section 88 of the C.P.C. enacts that two or more persons claiming adversely to one another, the same debt, sum of money or other property, movable or immovable property from a person who does not claim any interest therein except the charges and costs incurred by him and is ready to pay or deliver the same to the rightful claimant may file an interpleader suit.
The object of the aforesaid is to get claims of rival defendants adjudicated. It is the process where the plaintiff calls upon the rival claimants to appear before the Court and get their respective claims decided. The decision of the Court in an interpleader suit affords idemnity to the plaintiff on the payment of money or delivery of property to the person whose claim has been upheld by the Court.
Before an interpleader suit can be instituted, the following conditions must be fulfilled:-
(i) There must be a debt, sum of money or some property movable or immovable due from the plaintiff; (ii) There must be two or more persons claiming adversely to one another; (iii) The plaintiff must not have any interest therein other than charges and cost; (iv) The plaintiff must be ready and willing to pay or deliver it to the rightful claimant; (v) The suit must be bonafide and there should not be collusion between the plaintiff and or any of the defendants/rival claimants.
Rule 1 of Order 35 clearly indicates that in every interpleader suit the plaint shall in addition to other statements necessary for claims say that the plaintiffs claims no interest in the subject matter in dispute and that the claim made by the defendants severally and there is no collusion between the plaintiff and any of the defendants.
In the present case at hand, Rule 5 of Order 35 is in the eye of the controversy and as such for ready reference is being reproduced hereinafter:-
5. Agents and tenants may not institute interpleader suits.- Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or landlords.
Illustrations
(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A, and claims them from B. B cannot institute an interpleader-suit against A and C.
(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C s debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute in interpleader-suit against A and C. From the bare perusal of the aforesaid provisions, it would indicate that the first part of Rule 5 prohibits an agent or a tenant from disputing the title of his principal or his landlord. The second part thereof provides an exception to the general rule. It will also be relevant to note that Rule 5 is accompanied by illustration which had already been reproduced hereinabove, first.
The illustrations (a) explains the principle as incorporated in the first part of the Rule 5 while the illustration (b) deals with the case of the exception as in case of third party (stranger) claiming through the principal.
The provision prohibiting that tenant from instituting an interpleader suit against his landlord is based on the doctrine of estoppel as the tenant cannot challenge the title of his landlord which is based on the principle of Section 116 of the Evidence Act, 1872. The aforesaid Rule 5 of Order 35 precludes the tenant from instituting an interpleader suit against his lanlord and any person other than a person making claim through such landlord.
Thus, applying the principles to the case at hand, it would be clear that the plaintiff in his plaint has clearly stated that he was inducted by late Lala Murlidhar, thus, on the plain reading of the aforesaid provision, the suit was not maintainable against Sri Murlidhar. However, the problem is little different, inasmuch as, Sri Murlidhar has expired and he was survived by his daughter Smt. Anar Devi and son late Sri Badri Prasad. Significantly, both Smt. Anar Devi and Sri Badri Prasad have also expired and the defendants to the suit are the legal heirs of Smt. Anar Devi and Sri Badri Prasad.
Now, whether they would be covered under the terms of landlord or they would be covered under the exception provided in the second part i.e. persons other than claiming through the "principal or landlord".
To answer the aforesaid, it would be relevant to point out that the tenancy in question is governed by the Uttar Pradesh Urban Buildings (Regulations of Letting and Rent Eviction) Act , 1972. The aforesaid Act is a Code in itself and governs all rights, obligations of letting, eviction relating to the properties governed by the said Act both with regard to the landlord and the tenants. It is in light thereof it would reveal that once it is admitted by the plaintiff that Murlidhar was the landlord who had inducted the plaintiffs, upon his death, his legal heirs automatically step into the shoes and both Smt. Anar Devi and Sri Badri Prasad would be the landlord. Upon their death, their legal heirs jointly become the landlords of the property in question. Another fact which needs to be noticed here is that the suits for eviction were filed by Smt. Anar Devi and Sri Badri Prasad in their life times in the year 1998. It has been informed that there are two sets of proceedings which are pending (i) SCC Suit seeking arrears of rent and ejectment under Section 20 of U.P. Act No. 13 of 1972 and (ii) seeking release of the property in terms of Section 21 of the U.P. Act No. 13 of 1972.
It would be noticed that the plaintiffs had been depositing the rent in the eviction suit and as such as per Section 3 (j) of the U.P. Act of 1972 the word "landlord" has been defined which reads as under:-
(j) "Landlord", in relation to a builiding, means a person to whom its rent is or if the building were let, would be, payable and includes, except in Clause (g) the agent or attorney or such person;
Once the plaintiffs who could not dispute the factual position and had already deposited the rent and continued to deposit rent in the SCC suit in favour of the defendants who have been substituted as landlords, they are prevented from taking this plea to state that there are two separae sets of person claiming and hence the requirement of an interpleader suit.
It will also be relevant to point out that though there are many defendants and heirs of Smt. Anar Devi and Sri Badri Prasad but nevertheless in so far as the plaintiffs are cocerned, all of them are the joint landlords of the plaintiffs and this is by operation of law in terms of U.P. Act No. 13 of 1972. Having said that, it would be clear that as far as the defendants of the interpleader suit are concerned, they are the landlords and they do not fall within the exception as contained in Rule 5 of Order 35.
Thus, this Court is of the view that in so far as the embargo contained in Order 35 Rule 5 is concerned, the same was squarely applicable in the case of the plaintiffs and therefore the two courts have not committed any error in rejecting the plaint on the aforesaid embargo contained in Order 35 Rule 5 C.P.C.
Coming to the other submissions which is merely found since the bar has already been upheld by the Court, however, it would be appropriate to meet the other submission of the learned counsel for the appellants as well.
This Court finds that as far as the cause of action as pleaded in the plaint is concerned, the same is not appropriate. The plaintiff has grossly erred in resorting to gross suppression and concealment of the material facts. It was the duty of the plaintiff to have come before the Court with clean hands, inasmuch as, it was their duty to have disclosed the pendency of all the suits which were filed and had been pending since 1998.
Though, in the paper book of the present second appeal, the appellant has filed a copy of an order passed by the High Court dated 26.11.2013 in W.P. No. 4728 (MS) of 2005 (Deewan Chandra Vs. ADJ, Court No. 1, Lakhimpur Kheri and Another). This order relates to the dispute in question. Sri Deewan Chandra is none other than the plaintiff-appellant no. 2 herein. Even the factum of the Kishan aforesaid writ petition was concealed by the plaintiff. While passing reference has been made in paragraph 11 of the plaint that a suit has been filed by the defendant nos. 1 to 6 and defendant nos. 8, 9 and 10 have demanded rent, however, this in itself was not a complete disclosure to make the cause of action subsisting.
It will be relevant to point out that the Apex Court in the case of T. Arivandandam Vs. T.V. Satyapal and Another reported in 1977 (4) SCC 467 while dealing with Order 7 Rule 11 has held as under:-
"5. ............The learned Munsif 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, he should exercise his power under Or. VII Rule 11, C.P.C. 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 X, C.P.C. 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............."(emphasis added) The Apex Court in the case of Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others; (2004) 3 SCC 137. In paragraph 17 of the aforesaid judgment, Supreme Court held:-
"17. ............................. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by searching examination of the party, in case the court is prima facie of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised." (emphasis added) Similarly in the case of Popat and Kotecha Property Vs. State Bank of India Staff Association; (2005) 7 SCC 510, in paragraph-20 again, the Apex Court takes exactly the same view.
In the case of I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others ; (1998) 2 SCC page 70, in paragraph-16 of which, the Court had stated:-
"16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint.
(See T. Arivandandam Vs. T.V. Satyapal5 )"
So also in the case of Raj Narain Sarin (Dead) Through LRs. and Others Vs. Laxmi Devi and Others; (2002) 10 SCC 501, after considering the facts in the concluding paragraphs-8, the Court held:-
"8. ................................... The plaint is totally silent on that score, though, however, the existence of the deed of sale noticed above stands accepted by the plaintiff. The litigation, in our view, cannot but be termed to be utterly vexatious and abuse of the process of court, more so by reason of the fact that the deed of sale being executed as early as 1941 stands unassailed for a period of over 50 years. The decision of this Court in T. Arivandandam1 has its due application and having regard to the decision as noticed above and upon consideration of the relevant provisions as engrafted in the Code itself, we have no hesitation in accepting the order of the learned Additional District Judge...................."(emphasis added) Further reference may be made to the case of Maria Margarida Sequeira Fernandes and Others Vs. Erasmo Jack De Sequeira (Dead) through L.Rs. 2012 (5) SCC 370. In this case the Supreme Court has laid down at length the duty of the Court in finding of the truth and also with regard to the pleadings and the manner in which they are to be made by the parties. Relevant paragraphs of the said judgment are:-
"32. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies.
37. Lord Denning, in the case of Jones v. National Coal Board [1957] 2 QB 55 has observed that:
"In the system of trial [that we] evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of [the] society at large, as happens, we believe, in some foreign countries."
38. Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.
40. World over, modern procedural Codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized.
41. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.
51. In the administration of justice, judges and lawyers play equal roles. Like judges, lawyers also must ensure that truth triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth. "
In view of the above, it was not open for the plaintiff to have created an illusion of a cause of action. The plaintiff cannot be permitted to resort to clever drafting to get over the rigours of Order 7 Rule 11 C.P.C.
This Court is also fortified in its view in light of the decision rendered by a co-ordinate Bench of this Court in the case of Mudit Verma Vs. Ram Kumar and Another reported in 2018 (8) ADJ 52 wherein the provisions of Order 7 Rule 11 in context with suppression and concealment has been considered. The Coordinate Bench of this Court relying upon the various Supreme Court decisions held as under and the relevant portion thereof is being reproduced:-
"9. So far as the pleadings are concerned, again in the aforesaid judgment, Supreme Court has cast duty upon the Courts to be particular about the same. Reference may be made to the following paragraphs:
"61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question.
68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.
69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.
71. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents.
72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.
73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case.
77. The Court must ensure that pleadings of a case must contain sufficient particulars. Insistence on details reduces the ability to put forward a non-existent or false claim or defence. In dealing with a civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide the fate of the case."
(emphasis added)"
"16. From the facts noted above, it is also clear that the respondents-plaintiffs made serious concealment regarding possession in his plaint. In a suit for injunction, possession is of great relevance. Plaintiff cannot be permitted to make a false statement or conceal true facts from court with regard to same. What is the effect of the said serious concealment with regard to possession made from the Court? Such a question came for consideration before the Supreme Court, besides the afroresaid cases, in case of S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs. and Others, reported in (1994) 1 SCC 1. In the said case, the plaintiffs concealed the fact of execution of a release date from the Court which came in knowledge of the Court later. In paragraph 5 and 6, the Supreme Court held:-
"5. ........................... We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
6. ....................................A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party. "
(Emphasis added)"
18. The Supreme Court in case of Bharvagi Constructions and Another Vs. Kothakapu Muthyam Reddy and Others, reported in 2017 (35) LCD 2505: 2017 SCC On Line 1053, where a similar objection was raised and the Court held that it is the law declared by the Court, which is also covered under the expression occurring in Order 7 Rule 11(d) of the Court. Relevant paragraphs of the said judgment are as follows:-
"32. The question as to whether the expression "law" occurring in clause(d) of Rule 11 of Order 7 of the Code includes "judicial decisions of the Apex Court" came up for consideration before the Division Bench of the Allahabad High Court in Virender Kumar Dixit Vs. State of U.P., 2014(9) ADJ 1506. The Division Bench dealt with the issue in detail in the context of several decisions on the subject and held in para 15 as under:
"15. Law includes not only legislative enactments but also judicial precedents. An authoritative judgment of the Courts including higher judiciary is also law."
33. This very issue was again considered by the Gujarat High Court (Single Bench) in the case of Hermes Marines Limited Vs. Capeshore Maritime Partners F.Z.C. & Anr. (unreported decision in Civil Application (OJ) No.144 of 2016 in Admiralty Suit No.10 of 2016 decided on 22.04.2016). The learned Single Judge examined the issue and relying upon the decision of the Allahabad High Court quoted supra held in Para 53 as under:
"53. In the light of the above discussion, in the considered view of this Court, it cannot be said that the term "barred by any law" occurring in clause(d) of Rule 11 of Order 7 of the Code, ought to be read to mean only the law codified in a legislative enactment and not the law laid down by the Courts in judicial precedents. The judicial precedent of the Supreme Court in Liverpool & London Steamship Protection and Indemnity Association Vs. M.V. Sea Success, 2004(9) SCC 512 has been followed by the decision of the Division Bench in Croft Sales & Distribution Ltd. vs. M.V. Basil, 2011(2) GLR 1027. It is, therefore, the law as of today, which is that the Geneva Convention of 1999 cannot be made applicable to a contract that does not involve public law character. Such a contract would not give rise to a maritime claim. As discussed earlier, the word ''law' as occurring in Order 7 Rule 11(d) would also mean judicial precedent. If the judicial precedent bars any action that would be the law."
34. Similarly, this very issue was again examined by the Bombay High Court (Single Judge) in Shahid s. Sarkar & Ors. Vs. Usha Ramrao Bhojane, 2017 SCC OnLine Bom 3440. The learned Judge placed reliance on the decisions of the Allahabad High Court in Virender Kumar Dixit Vs. State of U.P. (Supra) and the Gujarat High Court in Hermes Marines Limited (supra) and held as under:
"18................The law laid down by the highest court of a State as well as the Supreme Court, is the law. In fact, Article 141 of the Constitution of India categorically states that the law declared by the Supreme Court shall be binding on all Courts within the territories of India. There is nothing even in the C.P.C. to restrict the meaning of the words "barred by any law" to mean only codified law or statute law as sought to be contended by Mr. Patil. In the view that I have taken, I am supported by a decision of the Gujarat High Court in the case of Hermes Marines Ltd....................................."
"19. One must also not lose sight of the purpose and intention behind Order VII Rule 11(d). The intention appears to be that when the suit appears from the statement in the plaint to be barred by any law, the Courts will not unnecessarily protract the litigation and proceed with the hearing of the suit. The purpose clearly appears to be to ensure that where a Defendant is able to establish that the Plaint ought to be rejected on any of the grounds set out in the said Rule, the Court would be duty bound to do so, so as to save expenses, achieve expedition and avoid the court's resources being used up on cases which will serve no useful purpose. A litigation, which in the opinion of the court, is doomed to fail would not further be allowed to be used as a device to harass a Defendant......................."
35. Similarly, issue was again examined by the High Court of Jharkhand(Single Judge) in Mira Sinha & Ors. Vs. State of Jharkhand & Ors., 2015 SCC OnLine Jhar.4377. The learned Judge, in paragraph 7 held as under:
"7. In the background of the law laid down by the Hon'ble Supreme Court, it is apparent that Order VII Rule 11(d) C.P.C. application is maintainable only when the suit is barred by any law. The expression "law" included in Rule 11(d) includes Law of Limitation and, it would also include the law declared by the Hon'ble Supreme Court........."
36. We are in agreement with the view taken by Allahabad, Gujarat, Bombay and Jharkhand High Courts in the aforementioned four decisions which, in our opinion, is the proper interpretation of the expression "law" occurring in clause (d) of Rule 11 of Order 7 of the Code. This answers the first submission of the learned counsel for the respondents against the respondents."
(Emphasis added)"
Thus, apart from what has been stated above, this Court finds that that the plaintiff did not come to Court with full disclosure and in light of the dictum of the Apex Court in the case of Bhaskar Laxman Jadhav & Ors. Vs. Karamveer Kakasaheb Wagh Education Society & Ors. Reported in 2013 (11) SCC 531 wherein in paragraph 42 to 47, the Apex Court has held as under:-
Suppression of fact
42. While dealing with the conduct of the parties, we may also notice the submission of the learned counsel for Respondent 1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2-5-2003 of the first application for extension of time filed by the trustees and the finality attached to it. These facts have not been clearly disclosed to this Court by the petitioners. It was submitted that in view of the suppression, special leave to appeal should not be granted to the petitioners.
43. The learned counsel for the petitioners submitted that no material facts have been withheld from this Court. It was submitted that while the order dated 2-5-2003 was undoubtedly not filed, its existence was not material in view of subsequent developments that had taken place. We cannot agree.
44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision-making to the court. True, there is a mention of the order dated 2-5-2003 in the order dated 24-7-2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2-5-2003 was passed or that it has attained finality.
45. We may only refer to two cases on this subject. In Hari Narain v. Badri Das [AIR 1963 SC 1558] stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows: (AIR p. 1560, para 9) "9. ... It is of utmost importance that in making material statements and setting forth grounds in applications for special leave care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent."
46. More recently, in Ramjas Foundation v. Union of India [(2010) 14 SCC 38 : (2011) 4 SCC (Civ) 889] the case law on the subject was discussed. It was held that if a litigant does not come to the court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said: (SCC p. 51, para 21) "21. The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty-bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."
47. A mere reference to the order dated 2-5-2003, en passant, in the order dated 24-7-2006 does not serve the requirement of disclosure. It is not for the court to look into every word of the pleadings, documents and annexures to fish out a fact. It is for the litigant to come upfront and clean with all material facts and then, on the basis of the submissions made by the learned counsel, leave it to the court to determine whether or not a particular fact is relevant for arriving at a decision. Unfortunately, the petitioners have not done this and must suffer the consequence thereof.
Thus, in light of the aforesaid discussions, this Court finds that the decision relied upon by the appellant in the case of Yashwant Bhikaji (supra) which is on a different fact situation does not come to the rescue. So also the decision of the Apex Court relied upon by the learned counsel for the appellant regarding the distinction in the cause of action as expressed by him are not applicable in the present case for the detailed reasons as already mentioned above, hence, the aforesaid decision also does not help the plaintiff-appellant.
In view of the aforesaid, there is no manner of doubt that the two courts below have rightly rejected the plaint, inasmuch as, it appears that the plaintiff instituted the interpleader suit only to delay the outcome and that too has resorted to concealment and, accordingly, this Court is not inclined to interfere nor does it find that any substantial question of law arises in the above second appeal which accordingly is dismissed at the admission stage. However, there shall be no order as to costs.
[Jaspreet Singh, J.] Order Date: 06.02.2020.
Asheesh