Uttarakhand High Court
Mohan Chandra Tewari vs Harish Chandra Bhandari And Etc. on 26 February, 2003
Equivalent citations: AIR2003UTR10, AIR 2003 UTTARANCHAL 10, (2003) 2 UC 1355
Author: P.C. Verma
Bench: P.C. Verma
ORDER P.C. Verma, J.
1. In these two revisions a common question arises for decision on the arguments advanced by the parties counsel, therefore, both the revisions are being decided by one and common judgment.
2. Both these revisions have been filed against the decree passed by the Judge Small Cause Courts/District Judge, Almora in S. C. C. Suits Nos. 6 of 1987 and 5 of 1987 respectively on 2-5-1998. These suits were filed for eviction of the revisionist, recovery of rent and damages and mesne profits. After framing of issues and evidence led by the parties, the trial court decreed the suits and passed the decree for eviction, recovery of rent and damages and also mesne profits.
3. Feeling aggrieved, the revisionist filed these revisions on various grounds. During course of argument, the learned senior Ad-vdcate Sri Ravi Kiran Jain argued only one point that the plaints in suits do not disclose any cause of action. Therefore, the suits were liable to be dismissed under Order 7, Rule 11 of the Civil Procedure Code. The trial court ought to have dismissed the suits even after the framing of issues at any stage of the trial of the suits. He relied on a Supreme Court decision in the case of Azhar Hussain v. Rajiv Gandhi, reported in 1980 Supp SCC 315 : (AIR 1986 SO 1253), and submitted that the plaints were cleverly drafted in order to get rid of the provisions of Order 7, Rule 11 of the C. P. C. There was no real cause of actions set out in the plaints, Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue shall be shown in the plaint.
4. The learned counsel for the respondent submitted that since it is a revision under Section 25 of the Provincial Small Cause Courts Act (hereinafter referred to as the Act), therefore the plea, which was not taken before the trial court cannot be taken in the revision as the question of determination of cause of action is a mixed question of fact and law. The learned counsel further submitted that the revision is not continuation of the suit. Therefore, at the revisional stage plea of Order 7, Rule 11 of the C. P. C. cannot be raised.
5. In view of the aforesaid rival contentions of the learned counsel for the parties, the moot question that arises for the first time to be considered is as to whether in a revision under Section 25 of the Act a plea of Order 7, Rule 11 of the C. P. C. can be raised.
6. In order to determine the aforesaid question, relevant statutory provisions may be examined.
7. Order 7 of the Civil Procedure Code deals with the plaint. Rule 1 of Order 7 provides particulars to be contained in the plaint. Rule 2 provides the particulars to be contained in case of money suits. Rule 3 provides the particulars to be contained in the plaint where the subject matter of the suit is immovable property. Rule 4 provides particulars to be contained when the plaintiffs sues as representative. Rule 5 provides the particulars to be contained in the plaint where the defendant's interest and liability is shown. Rule 6 provides the grounds of exemption from limitation law. Rule-7 provides that the relief should be specifically stated, Rule-8 provides when the relief founded on separate grounds or cause of action. Rule 9 provides procedure on admitting the plaint. Rule 10 provides return of the plaint. Sub-rule (2) of Rule 10 provides the procedure on returning the plaint. Rule 10A empowers the Court to fix a date in the Court when the plaint is filed after its return. Rule 1013 provides power of appellate Court to transfer the suit to the proper Court. Rule 11 provides for rejection of plaint on the grounds contained in Clauses (a) to (1) of the rule.
8. In the case in hand, the argument of the revisionist is that the plaintiffs plaints ought to have been rejected, as they do not disclose any cause of action.
9. Clauses of Rule 11 reads as under :--
"(a) Where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff on being required by the Court to correct the valuation within a Lime 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".
10. Rule 12 provides procedure on rejecting the plaint which reads as under :--
"Where a plaint is rejected the judge shall record an order to that effect with the reasons for such order."
Rule 13 provides for rejection of plaint does not preclude fresh presentation of the plaint which reads as under :--
"The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."
11. Thus, the absence of disclosure of cause of act ion is la curable defect, for which an opportunity is to be given before the order is passed. Therefore, the power under Order 7, Rule 11 C. P. C. shall be exercised at the threshold i.e. on the first day of hearing of the ease before the trial court as has been held by the Apex court in T. Arivandandam v. T. V. Satyapal reported in (1977) 4 SCC 467 : (AIR 1977 SC 2421), which is as under :--
"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 (hat the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints....... if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11. C. P. C. taking care to see that the ground mentioned therein is fulfilled. And, if elever 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 clown at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this ease, 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."
12. The Apex Court further held in Azhar Hussain v. Rajiv Gandhi, reported in 1986 (Supp) SCC 315 : (AIR 1986 SC 1253) that, "Learned counsel for the petitioner has. next, argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence and only after the trial of the election petition is concluded that the powers under the Code of Civil Proeedure for dealing appropriately with the defective petition which does not disclose cause action should be exercised. With respect to the learned counsel, if is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil the court readily exercises the power to reject a plaint if it does not disclose any cause, of action. Or the power to direct the concerned party to strike out unnecessary, scandalous frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleadings. The courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action would terminate in view of the merits of the preliminary point of ob-jection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoronghly misconceived and untenable argument, the powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments."
13. In ease Samar Singh v. Kedar Nath alias K. N. Singh, reported in 1987 (Supp) SCC 663 : (AIR 1987 SC 1926), the argument was that once the issues are framed, the court must proceed with the trial, record evidence and only thereafter it should deal with the preliminary objection raised by the returned candidate that the petition does not disclose any cause of action. Relying on the case laid down in Azhar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253)(supra) the Apex Court rejected the contention that the preliminary objection should be decided after the issues arc framed and the court has applied its mind to the pleadings raised by the parties. The Supreme Court relying on other two decisions, namely, Bhagwati Prasad Dixit v. Rajeev Gandhi (1986)4 SCC 78 : (AIR 1986 SC 1534) and Dhartipakar Madan Lal Agarwal v. Rajeev Gandhi, 1987 Supp SCC 93 : (AIR 1987 SC 1577) held as under :--
"If an election petition does not disclose cause of action, it can be dismissed summarily at the threshold of the proceeding under Order 7, Rule 11 of the Code of Civil Procedure. If an election petition can be summarily rejected at the threshold of the proceeding we do not see any reason as to why the same cannot be rejected at any stage of subsequent proceeding. If after framing of issues basic defect in the election petition persists (absence of cause of action) it is always open to the contesting respondent to insist that the petition be rejected, under Order 7, Rule 11 and the court would be acting within its jurisdiction, in considering the objection. Order 7. Rule 11 does not place any restriction or limitation on the exercise of court's power; it does not cither expressly or by the necessary implication provide that power under Order 7, Rule 11, C. P. C. should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provision, it is open to the court to exercise that power at any stage. While it is true that ordinarily preliminary objection to the maintainability of the petition on the ground of absence of cause of action should be raised by the respondent as early as possible but if a party raises objections after filing written statement the preliminary objection cannot be ignored. If the election petition does not disclose any cause of action, the respondent's right to raise objection to the maintainability of the petition, or the court's power to consider the objection is not affected adversely merely because the objection is raised after filing of written statement or framing of issues. The court would be acting within its jurisdiction in exercise of its power under Order 7, Rule 11 in rejecting the same even after settlement, of issues."
14. In the case of I. T. C. Limited v. Debts Recovery Appellate Tribunal, reported in (1998)2 SCC 70 ; (AIR 1998 SC 634) an application was moved under Order 7, Rule 11 before the Debts Recovery Tribunal. The Debts Recovery Tribunal passed the following order :-- (Para 3 of AIR) "Objections filed. Heard. Cause of action is a mixed question of fact and law. Hence IA 3 cannot be entertained at this stage. Post for evidence."
15. The matter went up to the High court in Writ Petition No. 8564 of 1997. The High Court held that the question has to be decided at. the trial and it could not be stated that there was no cause of action at all disclosed in the plaint against the appellant. Against this judgment of the High Court, the I.T.C. Ltd. approached the Apex Court and the Apex Court relying on Azhar Hussain's ease (AIR 1986 SC 1253) (supra) observed as under :-- (AIR 1998 SC 634, para 13) "We may state that in the context of Order 7, Rule 11, C. P. C., a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain v. Rajiv Gandhi, reported in 1986 Supp SCC p. 315 (SCC p. 324) : (AIR 1986 SC 1253) as follows (para 12) "In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial .... is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court....."
The abovesaid judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh v. Kedar Nath, reported in 1987 Supp SCC 663 : (AIR 1987 SC 1926). We therefore, hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7, Rule 11, C.P.C."
16. Thus, from the pronouncements of the Supreme Court, it is clear that while it is true that ordinarily preliminary objections to the maintainability of the suit on the ground of absence of cause of action should be raised by the respondent as early as possible but the court's power to consider the objection is not affected adversely merely because the objection is raised after filing the written statement or framing of issues. The court would be acting within its jurisdiction in exercise of its power under Order 7, Rule 11, C. P. C. in rejecting the same even after the settlement of issues.
17. The plaintiffs have remedy against the order passed under Order 7, Rule 11, C. P. C. Under Order 7, Rule 13, C. P. C., he may cure the defect or he may file an appeal under Section 96 of the C. P. C. as the order of rejecting the plaint is a decree under Sub-section (2) of Section 2 of the Civil Procedure Code. Therefore, the objection under Order 7, Rule 11, C. P. C. can be raised at any stage be fore conclusion of the trial.
18. The Apex Court in the case of Saleem Bhai v. State of Maharashtra reported in (2003)1 SCC 557 : (AIR 2003 SC 759) has settled the issue finally that the trial court can exercise the power under Order 7, Rule 11, C. P. C. 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, in Para 9 of the judgment, which is reproduced as under :--
"A perusal of Order 7, Rule 11, C. P. C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under Order 7. Rule 11. C. P. C. at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order 7, C. P. C., the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7, Rule 11, C. P. C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court, the order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects."
19. Thus, I hold that the plea of rejection of plaint under Order 7, Rule 11, C. P. C. cannot be raised for the first time in revision under Section 25 of the Provincial Small Cause Courts Act.
20. No other point pressed.
21. Thus, both the revisions fail and are hereby dismissed.