Rajasthan High Court - Jaipur
Anil Kumar Srivastava vs Mukesh Chand Saxena And Others on 1 August, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ` order SB Civil Revision Petition No.118/2012 Anil Kumar Shrivastava vs. Mukesh Chand Saxena & Others. Date of order :- 1st August,2013 HON'BLE MR. JUSTICE J. K. RANKA Mr. Ved Prakash, for the petitioner. Mr. Arvind Bhardwaj, for the respondents.
Reportable
1. By this writ petition, the petitioner has challenged the order dated 12.09.2012 passed by the trial Court n Civil Suit No. 40/2012 whereby it dismissed the application under Order 7 Rule 11 CPC preferred by the petitioner-defendant No.4.
2. The brief facts of the case is that plaintiff respondent filed a civil suit for permanent injunction against the petitioner-defendant No.4 before the trial Court mentioning therein that the petitioner defendant No.4 has submitted a false affidavit before the respondent defendant No.2 to 4 to get a house or plot allotted to the petitioner defendant No.4. The petitioner had been allotted a plot No.72 in Arogya Nagar, Kota and submitted a false affidavit stating therein that he is having no house or plot. Thereafter, an application under Order 7 Rule 11 CPC had been filed by the petitioner-defendant No.4, which too had been rejected by the trial Court holding that whether the plaintiff is entitled to claim any relief against the defendant No.4 or not, could not be decided at that stage of the suit.
3. Aggrieved by the order of the trial Court, disallowing the application filed under Order 7 Rule 11 CPC read with Section 151 CPC the defendant revisionist has preferred this instant revision petition.
4. Mr. Ved Prakash learned counsel for the defendant revisionist strenuously argued that the trial Court had fallen in error in disallowing the application of the defendant filed under Order 7 Rule 11 read with Section 151 CPC. He argued that Order 7 Rule 11 lays down an independent remedy available to the defendant to challenge the maintainability of the suit, irrespective of his right to contest the same on merits. He further argued that the language of Order 7 Rule 11 clearly implies and cast a duty on the court to reject the plaint when the same is hit by any of the infirmities provided in the clauses of Order 7 Rule 11 even without intervention of the defendant. He further stressed that the trial court has committed grave error in law in not appreciating that it is not a formal reading of the plaint but a meaningful reading which is required to be undertaken by the court to see whether the plaint discloses a real cause of action or by clever drafting merely an illusion of a cause of action is created. He submits that the plaint averments, taken as a whole does not disclose any cause of action and the plaint is manifestly, vexatious and meritless in the sense of not disclosing a clear right to sue and hence is liable to be rejected.
5. Per contra learned counsel appearing for the respondents plaintiff supported the order passed by the trial court and submitted that the issue whether the plaintiff is entitled to claim any relief or has any locus standi could only be decided after a complete trial and the trial court has not committed any jurisdictional error in rejecting the application under Order 7 Rule 11 read with Section 151 CPC.
6. The law with regard to Order 7 Rule 11 is well defined in Liverpool & London S.P. & I Association Ltd. Vs. M.V. Sea Success I & Another (2004) 9 SCC Page 512 the Apex Court observed The idea underlying Order 7 Rule 11(a) is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a suit. Having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of Civil Procedure, the courts would interpret the provisions in such a manner 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 litigant. [see Azhar Hussain Vs. Rajiv Gandhi (1986)Supp SCC 315.
7. In the Case of T.Arivandandam Vs. T.V. Satyapal and Another (1977)4 SCC 467 wherein it has been held that We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC 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 10 CPC An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the fist hearing so that bogus litigation can be shot down at the earliest stage. The penal Code is also resourceful enough to meet such men, (Cr.xi) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard shaw remarked on the assassination of Mahatma Gandhi; It is dangerous to be too good.
8. It is settled law that plaint averments are germane for the application of Order 7 Rule 11 CPC and from a meaningful but not formal reading of the same, if a conclusion could be drawn that the plaint does not disclose cause of action or is barred by any law or is hit by any of the informations provided in the clauses of Order 7 Rule 11 then the court is duty bound to reject the plaint, what is the judicial meaning of the phrase cause of action is also well settled.
9. In Om Prakash Srivastava v. Union of India and Anr. (2006) 6 SCC 207 it was held as follows:
9. By "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. (See Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors. (1994 (6) SCC 322).
10 In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908)cause of action means every fact, which it is necessary to establish to support a right to obtain a judgment (See Sadanandan Bhadran V. Madhavan Sunil Kumar (1998 (6) SCC 514).
11. It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise.(See South East Asia Shipping Co. Ltd. V. Nav Bharat Enterprises Pvt. Ltd. and others.(1996 (3) scc 443).
12. The expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in cause of action. (See Rajasthan High Court Advocates' Association Vs. Union of India and Ors.(2001 (2) scc 294).
13. The expressioncause of action has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh V. Munsha Singh (1977 (1) SCC 791).
14. The expression cause of action is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person.(See Black's Law Dictionary). In Stroud's Judicial Dictionary a cause of action is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In words and Phrases4th Edn.) the meaning attributed to the phrase cause of action in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majitia Vs. State of Maharashtra and Ors.(2000 (7) SCC 640).
15. In Halsbury's Laws of England (Fourth Edition) it has been stated as follows:
cause of action has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action".
10. In the light of the above settled legal preposition, it would be profitable to refer to the averments made by the plaintiff respondent in para 1 of the plaint:-
'' 1.?? ?? ????????? ???? 1 ? 2 ???????? ????? ?? ?????? ????? ?? ? ??? ????????? ????-3 ???????? ????? ?????? ??????? ???? ??? ?????? ?? ? ????? ????? ?? ???? ?? ??? ?? ???? ????? ???? ??? ??? ???? ?? ??????? ???? ??? ????? ????? ???? ???? ????? ??? ????? ????? ?? ????? ???? ???? ??? ??? ??????????? ?????? ?? ??? ????? ???? ???? ?????? ???? ??? ??????????? ???? ?? ?????? ?? ?????? ???? ???? ????????? ???? ??? ?? ???? ?? ???? ?? ?????? ?? ??????????? ?? ??????? ???? ?????? ????????? ???? ?? ?????? ??? ??? ???? ??? ???? ?????? ?? ??? ???????? ???? ?? ??? ?? ?
11. In para 5 & 6 of the plaintiff the plaintiff asserts in para 5 and 6 the relief claimed by the plaintiff in the plaint as under:-
''5. ?? ?? ????????? ????-4 ?? ????? ????? ???? ?????? ?????? 12.3.2001 ?? ??.??.??. ????? ?????? ????????? ??? ???? ??? ???? ????? 11/207 ?????? ????? ???? ????? ???? ?????? 9.4.2001 ?? ???? ?? ???? ??? ?????? ????????? ????-4 ?? ???? ???? ?????? ??? ????? ????? ??? ???? ???? ???? ?????? ???, ????? ??? ???? ???? ?????? 7.1.2007 ?? ?????? ?????? ????? ??????? ?? ???? ?
6. ?? ?? ????? ?????? ?? ?????? ??? ??? ??????? ????? ??? ???? ??? ?? ????? ?? ????? ?? ?????? ?? ?? ???? ????? ?????? ???? ???? ????? ???? ??? ??? ??? ????? ????? ???? ?????? ?? ???: ????? ??????? ???? ?? ??????? ?? ? ??? ?? ??????? ?? ???? ???? ???? ??????? ????????? ????-4 ?? ????? ??? ???? ???? ????? ????? ?????? ?? ???? ???? ???? ????? ?????? ???? ????? ?? ??? ???? ????? ???: ??? ????? ?????, ??????? ???? ?? ??????? ?? ? ''
12. On a meaningful reading of the plaint averments it can safely be concluded that the plaintiff has approached the court claiming himself to be a vigilant citizen of India and representative of public demanding that the allotment of plot No.72 area 72 meters made by Urban Development Trust, Kota in favour of Revisionist Anil Kumar Srivastava be cancelled and possession of the same be delivered to the Urban Development Trust. The plaintiff has not come to the court for the redressal of any injury or infringement of any of his personal legal right but asserts that there has been a wrongful act, affecting the public by allotment of a plot to the defendant revisionist by the Urban Development Trust. Admittedly the plaintiff is not claiming that he was entitled to such allotment or himself claiming recovery of possession. Suits of such a nature are covered under the provisions of section 91 CPC. Section 91 CPC reads as under:-
91.Public nuisances.-
[(1).In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case,may be instituted;-
(a) by the Advocate General, or
(b) with the leave of the Court, by two or more persons even though no special damage has been cause to such persons by reason of such public nuisance or other wrongful act.] (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
13. From a bare perusal of the above provisions it is abundantly clear that a person who seeks remedy for an alleged public wrong may approach the Advocate General to initiate proper legal proceeding or may himself pursue appropriate legal proceedings with the leave of the court. The respondent has not sought any leave of the court prior to the institution of the suit as mandated by Section 91 of the CPC. As such the suit is hit by Section 91 of the CPC. This Court in Kanti and Ors. Vs. U.I.T. Bikaner and Ors. RLW 1988 (1) Raj. 536 held as under:-
12.There is no manner of doubt from the averments made in the plaint and also from the evidence adduced from the side of plaintiff-respondent No. 3 that the present suit was filed for removal of public nuisance created by way of wrongful act of defendant-appellants' predecessor in possession, affecting the public way, therefore, in the case on hand, it does not involve determination of any right independent under Sub-section (2) of Section 91 of CPC. In such a situation it is held that plaintiff-respondent No. 3 was not entitled to file the suit on his own and he ought to have invoked the assistance of Advocate-General so that either he ought to have filed the suit himself or ought to have given permission to two or more persons aggrieved to bring the suit for removal of public nuisance affecting the public way.
13 to 16.......
17. Be that as it may, in the present case, precise question would be who is the true owner of the land in dispute and secondly who can file a suit for recovery of possession or in the alternatively for mandatory and perpetual injunction against a person in possession. It is admitted by plaintiff-respondent No. 3 as well as by defendant-respondents No. 1 and 2 that defendant-appellant is in possession over the disputed land. The factum of admitted possession of defendant-appellants is evident from the averments made in the plaint as well as from the written statements of defendant-respondent No. 1 and 2. Exclusive possession of defendant-appellants is also established from the depositions made by PW 1 and PW 2 and from the statements on oath from DW 1 to DW 4.
14. The instant case is squarely covered by the legal proposition enshrined in the above Judgment. The plaintiff does not claim himself to be the owner of the plot or entitled to allotment of such plot. He himself has not sought recovery of possession but demands that the allotment be cancelled and possession be delivered to the Urban Development Trust. By the suit averments, it is amply clear that he is agitating an alleged wrongful act affecting public. The suit does not involve determination of his independent/personal right and hence it was mandatory for him to comply with the provisions of Section 91 CPC. The plaintiff has neither sought leave of the court under Order 1 Rule 8 CPC.
15. Failure on part of the plaintiff to comply with the mandatory requirements of law renders his suit to be barred by law and from the suit averments it also emerges that the plaint does not disclose cause of action. From the application under Order 7 Rule 11 an interesting fact has also emerged that the plaintiff is brother in law (Sister's husband) of the defendant revisionist and there are other litigations pending in between the two. This fact is not denied before this court also. In such fact situation it appears that the plaintiff in the garb of agitating public right is trying to settle personal scores with the defendant revisionist. The suit is a device to achieve such purpose and as such is also liable to be rejected under the inherent powers of the court under section 151 CPC.
16. In the result, the revision petition is allowed. The impugned order dated 12.09.2012 is set-aside and the suit No. 40/2012 titled as Mukesh Chand Saxena Vs. Rajasthan Housing Board & Ors pending before the Civil Judge (JD) North, Kota, is rejected.
17. Before parting this Court deems it proper to mention that this court has neither approved nor disapproved the allotment of plot made by the Urban Development Trust to the Revisionist. If the allotment is made in defiance of any of the statutory rules, the authorities shall be entitled to initiate action accordance with law.
No order as to costs.
(J. K. Ranka),J.
All Corrections made in the Judgment/Order have been incorporated in the Judgment and Order being emailed.
RK BhattPSJW